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Court of AppealPartially AllowedCriminal Appeal 311 of 2008· [2009] KECA 73 (KLR)

1. Sole Gale Sole 2. John Bunge Chengo v Republic

Court of Appeal of Kenya
30 October 2009
788 words in judgment
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The bottom line

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Kenya's Court of Appeal freed two murder convicts because their trial was badly flawed—unexplained detention, excluded assessors, and contradictory eyewitness identification.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Tunoi, Waki and Onyango Otieno, JJ.A) allowed the first and final appeal of Sole Gale Sole and John Bunge Chengo against their conviction for murder and sentence of death imposed by the High Court at Meru (Emukule, J.) on 5th December 2008. The court identified grave irregularities in the trial: the appellants were detained at Marsabit Police Station for 183 days after their arrest on 5th March 2003 before first appearing in court on 4th September 2003, a detention the State could not explain; the trial, spanning over five years before five judges due to abrupt transfers, was fractured; and critically, Emukule, J., who took over from Lenaola, J., wrote the judgment without recourse to section 201(2) of the Criminal Procedure Code and excluded the assessors who had sat with Lenaola, J., without explanation, with no summing up and no opinion from them. The court held that this omission breached the law as it then stood and rendered the trial a nullity. On the merits, the key witness, the deceased's widow, gave materially contradictory accounts of whether she saw the appellant John Bunge fire the fatal shot, first denying she had seen him and later claiming identification by moonlight; the court held her evidence could not amount to positive identification and lacked corroboration. With the State conceding the appeal and not seeking a retrial, the court quashed the convictions, set aside the death sentences, and ordered the appellants set at liberty forthwith unless otherwise lawfully held. No costs order was made.

Key legal issues

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01

Continuity and regularity of the trial before a partially heard case

Holding

The trial was a nullity because Emukule, J., who took over from Lenaola, J., wrote the judgment without recourse to section 201(2) of the Criminal Procedure Code and excluded the assessors without explanation, without any summing up or their opinion.

Reasoning

Five judges heard the case with interruptions due to abrupt transfers. Lenaola, J. conducted the trial with assessors, but Emukule, J., on taking over, excluded them without explanation; their fate is unknown. There was no summing up and they gave no opinion. That omission breached the law as it then stood, vitiating the trial.

p. 2
02

Positive identification by a sole eyewitness

Holding

The evidence of PW1, the deceased's wife, could not amount to positive identification of the appellant John Bunge because it was contradictory, varied from her earlier testimony, and lacked any supporting evidence.

Reasoning

Before Sitati, J. she claimed to have identified the appellant by moonlight firing the shot; before Lenaola, J. and Onyancha, J. she said she had not seen him and only received his name from the deceased. The shooting occurred at 8 p.m. in darkness; she could not have seen the source of the bullet or a bullet whizzing by with naked eyes.

p. 2
03

Prolonged pre-trial detention

Holding

The appellants' 183-day detention between arrest and first appearance before a court was an excessively long and unexplained detention that caused the court serious concern.

Reasoning

The appellants were arrested on 5th March 2003 but were not brought before any court until 4th September 2003. Senior state counsel accepted the excessive period but could offer no explanation. This, together with the over-five-year trial duration, marked the proceedings as unsatisfactory.

p. 1

Legal principles established

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  • Where a trial judge takes over a trial partially heard and excludes the assessors without explanation, omits to sum up to them and to obtain their opinion, the omission constitutes a breach of the law and renders the trial a nullity.
  • Contradictory testimony of a single identifying witness, unsupported by any other evidence, cannot amount to positive identification of an accused person.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The conviction of each appellant is quashed
  3. 3.The sentences of death imposed by the superior court are set aside
  4. 4.The appellants be set at liberty forthwith unless they are otherwise lawfully held
On appeal from
High Court of Kenya at Meru
H.C.CR.C. No. 128 of 2003
Jurisdiction invoked
First and final appeal against a conviction and sentence of the High Court under the Court of Appeal's appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "1. Sole Gale Sole 2. John Bunge Chengo v Republic", Case Analysis (2009). Criminal Appeal 311 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/73/eng@2009-10-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.